James Clinton, Sean Simpson, Sean Maguire, Patrick McGeown, John Murray, Philip Campbell, Kieran Smyth, Guy Breslin, John Connolly, Sean McGuinness, L., M., N. V. UK

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application Nos. 12690/87, 12731/87, 12823/87, 12900/87, 13032/87,
13033/87, 13246/87, 13231/87, 13232/87, 13233/87, 13310/87, 13553/88
and 13555/88

James CLINTON, Sean SIMPSON, Sean MAGUIRE, Patrick McGEOWN, John
MURRAY, Philip CAMPBELL, Kieran SMYTH, Guy BRESLIN, John CONNOLLY, Sean
McGUINNESS, L., M. and N.

against

the UNITED KINGDOM

REPORT OF THE COMMISSION

(adopted on 14 October 1991)

TABLE OF CONTENTS
Page

I. INTRODUCTION (paras. 1-17) 1-4

A. The applications (paras. 2-5) 1-2

B. The proceedings (paras. 6-12) 2-3

C. The present Report (paras. 13-17) 3-4

II. ESTABLISHMENT OF THE FACTS (paras. 18-33) 5-12

A. The particular circumstances of the cases 5-11
(paras. 18-30)

B. The relevant domestic law and practice 11-12
(paras. 31-33)

III. OPINION OF THE COMMISSION (paras. 34-54) 13-17

A. Complaints declared admissible (para. 34) 13

B. Points at issue (para. 35) 13

C. As regards Article 5 para. 1 of the 13-15
Convention (paras. 36-42)

Conclusion (para. 42) 15

D. As regards Article 5 para. 2 of the 15-16
(paras. 43-47)

Conclusion (para. 47) 16

E. As regards Article 5 para. 5 of the 17
Convention (paras. 48-51)

Conclusion (para. 51) 17

F. Recapitulation (paras. 52-54) 17

Dissenting opinion of Sir Basil Hall, 18
joined by Mr. Schermers

APPENDIX I History of the proceedings 19-20

APPENDIX II Decision on the admissibility 21-38
of the applications

I. INTRODUCTION

1. The following is an outline of the cases, as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.

A. The applications

The first seven applicants

2. The first applicant, James Clinton, is an Irish citizen, born in
1960 and resident in Belfast. The second applicant, Sean Simpson, is
an Irish citizen, born in 1959 and resident in Belfast. The third
applicant, Sean Maguire, is an Irish citizen, born in 1957 and resident
in Belfast. The fourth applicant, Patrick McGeown, is an Irish
citizen, born in 1956 and resident in Belfast. The fifth applicant,
John Murray, is an Irish citizen, born in 1950 and resident in Belfast.
The sixth applicant, Philip Campbell, is an Irish citizen, born in 1957
and resident in Belfast. The seventh applicant, Kieran Smyth, is an
Irish citizen, born in 1960 and resident in Belfast. The seven
applicants are represented before the Commission by Messrs. Madden and
Finucane, Solicitors, Belfast.

The other six applicants

3. The eighth applicant, Guy Breslin, is a British citizen, born in
1968 and resident in Strabane, County Tyrone. The ninth applicant,
John Connolly, is an Irish citizen, born in 1968 and resident in
Strabane, County Tyrone. The tenth applicant, Sean McGuinness, is a
British citizen, born in 1966 and resident in Strabane, County Tyrone.
The eleventh applicant is a British citizen, born in 1969 and resident
in Strabane, County Tyrone. The twelfth applicant is an Irish citizen,
born in 1964 and resident in Strabane, County Tyrone. The thirteenth
applicant is an Irish citizen, born in 1962 and resident in Strabane,
County Tyrone. These six applicants are represented before the
Commission by Messrs. John Fahy & Co., Solicitors, Strabane, County
Tyrone.

4. The applications are directed against the United Kingdom. The
respondent Government were represented by their Agent, Mr. M.C. Wood,
succeeded by Mrs. A.F. Glover, both of the Foreign and Commonwealth
Office.

5. The cases concern the applicants’ complaint that they were
arrested under prevention of terrorism legislation in breach of
Article 5 para. 1 of the Convention, their arrests having been
allegedly for interrogation purposes only, rather than for the purpose
of bringing them before a competent legal authority on reasonable
suspicion of having committed criminal offences, as envisaged by
Article 5 para. 1 (c) of the Convention. The first seven applicants
also complained that they had no enforceable right to compensation
under Northern Ireland law for their arrest claim, contrary to
Article 5 para. 5 of the Convention. The seventh applicant,
Kieran Smyth, further complained that he had not been informed promptly
of the reasons for his arrest, contrary to Article 5 para. 2 of the
Convention. (The first six applicants had made a similar complaint
under Article 5 para. 2 of the Convention but the Commission (Second
Chamber) had declared it inadmissible.)

B. The proceedings

6. The first application was introduced on 27 January 1987 and
registered on 2 February 1987. The second application was introduced
on 6 February 1987 and registered on 17 February 1987. The third
application was introduced on 13 March 1987 and registered on
24 March 1987. The fourth application was introduced on 1 May 1987 and
registered on 5 May 1987. The fifth application was introduced on
1 June 1987 and registered on 9 June 1987. The sixth application was
introduced on 2 June 1987 and registered on 12 June 1987. The seventh
application was introduced on 18 September 1987 and registered on
28 September 1987. The eighth, ninth and tenth applications were
introduced on 14 May 1987 and registered on 28 September 1987. The
eleventh application was introduced on 10 August 1987 and registered
on 19 October 1987. The twelfth application was introduced on
1 October 1987 and registered on 26 January 1988. The thirteenth
application was introduced on 25 June 1987 and registered on
26 January 1988.

7. After a preliminary examination of the cases by the Rapporteur,
the Commission considered the admissibility of the first, second and
fourth applications on 7 October 1987. The Commission decided,
pursuant to Rule 42 of its Rules of Procedure (former version), to give
notice of the applications to the respondent Government, but without
inviting the parties to submit written observations at that stage
pending the outcome of the case of Fox, Campbell and Hartley v. the
United Kingdom, at that time pending before the Commission and,
subsequently, the Court. In the meantime the examination of the three
applications was adjourned. The Commission took a similar decision in
the other 10 cases on 6 May 1989.

8. The Court gave its judgment in the above-mentioned case on
30 August 1990 (Eur. Court H.R., Fox, Campbell and Hartley judgment
of 30 August 1990, Series A no. 182). On 7 September 1990 the
Commission decided to invite the parties to submit written observations
on the cases in the light of that judgment within similar time limits.

9. Messrs. John Fahy & Co., on behalf of the last six applicants,
submitted their observations on 7 November 1990. The Government
submitted their observations on 4 January 1991 after an extension of
the time limit. Messrs. Madden & Finucane, on behalf of the first
seven applicants, submitted their observations on 12 February 1991,
after the expiry of the time limit, followed by an extension.

10. On 10 April 1991 the Commission decided to refer the applications
to the Second Chamber which on 31 May 1991 declared the first seven
applications partially admissible and the remaining applications
admissible.

11. On 10 June 1991 the parties were sent the text of the
Commission’s decision on admissibility and they were invited to submit
any further observations on the merits of the cases that they wished,
including further information about the factual circumstances of the
twelfth applicant’s arrest. The Government submitted further
information about the latter’s case on 22 July 1991. No further
observations were submitted by the applicants. On 14 October 1991 the
Commission joined the cases.

12. After declaring the cases admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties’ reactions the
Commission now finds that there is no basis on which such a settlement
can be effected.

C. The present Report

13. The present Report has been drawn up by the Commission (Second
Chamber) in pursuance of Article 31 para. 1 of the Convention and after
deliberations and votes, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber
G. JÖRUNDSSON
A. WEITZEL
H.G. SCHERMERS
Mrs. G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
Mr. M.P. PELLONPÄÄ

14. The text of this Report was adopted by the Commission on
14 October 1991 and is now transmitted to the Committee of Ministers
of the Council of Europe, in accordance with Article 31 para. 2 of the
Convention.

15. The purpose of the Report, pursuant to Article 31 para. 1 of the
Convention, is

1) to establish the facts, and

2) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.

16. A schedule setting out the history of the proceedings before the
Commission is attached hereto as APPENDIX I and the Commission’s
decision on the admissibility of the applications as APPENDIX II.

17. The pleadings of the parties, together with the documents lodged
as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the cases

(1) Application No. 12690/87 : James Clinton

18. At 06.00 hours on 21 October 1986 the first applicant was
arrested under section 11 of the Northern Ireland (Emergency
Provisions) Act 1978 (the 1978 Act) and was taken to Castlereagh Police
Office. At the time of his arrest he was told that he was being
arrested under section 11 of the 1978 Act as he was suspected of being
involved in terrorism. According to the Government, he was arrested
as a result of information received by the Royal Ulster Constabulary
(the RUC) from a usually reliable source which indicated that he was
involved in a terrorist incident, an attempted murder in Ormeau Road
on 3 October 1986. Interviewing began five hours later at 11.00 hours
on the day of his arrest and at that interview the first applicant was
informed that he was being questioned in connection with the
aforementioned attempted murder and possession of firearms. During his
interviews the first applicant was questioned in connection with the
circumstances of the Ormeau Road incident and it was put to him that
on the night in question he was in possession of the firearm which
caused the terrorist incident. The first applicant declined to answer
any questions put to him during his interviews and refused to speak at
all. At 16.20 hours on 22 October 1986 he was released without charge,
within 35 hours of his arrest.

(2) Application No. 12731/87 : Sean Simpson

19. The second applicant was arrested at 05.45 hours on
13 January 1987 under section 11 of the 1978 Act and was taken to
Castlereagh Police Office. At the time of his arrest he was told that
he was being arrested under section 11 of the 1978 Act as he was
suspected of being involved in terrorism. According to the Government,
he was arrested as a result of information received by the RUC from a
usually reliable source which indicated that he was a member of the
Provisional Irish Republican Army (PIRA). Interviewing began five and
a quarter hours later at 11.00 hours on the day of his arrest and he
was told that he was being questioned in connection with his suspected
membership of PIRA. During subsequent interviews the second applicant
was questioned about his membership of PIRA and, in particular, the
group within PIRA which, through violence and the threat of violence,
enforces discipline within that organisation. He was further
questioned about his involvement in the movement of weapons and in
terrorist activities in the Belfast area. The second applicant
declined to answer any questions or to speak at all. At 17.30 hours
on 14 January 1987 he was released without charge, within 36 hours of
his arrest.

(3) Application No. 12823/87 : Sean Maguire

20. The third applicant was arrested at 06.35 hours on
11 November 1986 under section 11 of the 1978 Act and was taken to
Castlereagh Police Office. At the time of his arrest he was told that
he was being arrested under section 11 of the 1978 Act as he was
suspected of being involved in terrorism. According to the Government,
he was arrested because information was received by the RUC from a
usually reliable source which indicated that he was a member of the
Ardoyne PIRA and involved in certain specific terrorist crimes in the
North Belfast area. Interviewing began four hours later at 10.40 hours
during which he was told he was being questioned in connection with the
aforementioned matters. He was subsequently questioned about certain
specific serious terrorist crimes in the North Belfast area. The third
applicant declined to answer any questions during his interviews or to
speak at all. At 14.00 hours on 13 November 1986 he was released
without charge, within 56 hours of his arrest. (At the time of his
arrest, the third applicant had previous convictions for conspiracy to
murder and possession of firearms and ammunition.)

(4) Application No. 12900/87 : Patrick McGeown

21. At 04.40 hours on 1 April 1987 the fourth applicant was arrested
under section 11 of the 1978 Act and was taken to Castlereagh Police
Office. At the time of his arrest he was told that he was being
arrested under section 11 of the 1978 Act as he was suspected of being
involved in terrorism. According to the Government, he was arrested
because of information received by the RUC from a usually reliable
source which indicated that he was a member of PIRA and had had
possession of weapons and explosives in the Greater Belfast area.
Interviewing began nearly six hours later at 10.35 hours on the morning
of his arrest when he was informed that he was being questioned
regarding his membership of PIRA and the possession of both weapons and
explosives in the Greater Belfast area since he rejoined PIRA after his
release from prison early in 1986. The fourth applicant stated that
he refused to answer any questions unless his solicitor was present and
thereafter declined to answer any questions. At his first and
subsequent interviews he was questioned at length regarding his
membership of and activities within PIRA and about his knowledge of
PIRA arms and explosives dumps. He was asked how long he was out of
prison before he rejoined active service with PIRA, what position he
held when he rejoined and who processed his application to rejoin. He
was asked what position he presently held within PIRA and what he had
done for PIRA since he rejoined. He was also asked what future
operations of PIRA he had knowledge of and about the identities of
present active PIRA members and their positions and ranks. At his
third interview he was asked whether he had been involved in any way
in a recent bombing in the Divis flats complex in which a soldier had
been killed. He was released from custody at 14.15 hours on
2 April 1987, within 34 hours of his arrest. (At the time of his
arrest, the fourth applicant had previous convictions for possessing
explosives with intent to endanger life or property, causing an
explosion likely to endanger life or property and belonging to a
proscribed organisation for which he was sentenced to a term of 15
years’ imprisonment.)

(5) Application No. 13032/87 : John Murray

22. The fifth applicant was arrested at 04.50 hours on
1 April 1987 under section 11 of the 1978 Act and was taken to
Castlereagh Police Office. At the time of his arrest he was told that
he was being arrested under section 11 of the 1978 Act as he was
suspected of being involved in terrorism. According to the Government,
he was arrested because information was received by the RUC from a
usually reliable source which indicated that he had been involved in
a recent gun and rocket attack at New Barnsley RUC station at 12.15
hours on 31 March 1987. Interviewing began nearly six hours later at
10.45 hours on the morning of his arrest when he was informed that he
was being questioned in connection with his alleged membership of PIRA
and possession of weapons on behalf of that organisation. At that
interview he was also questioned about the aforementioned gun and
rocket attack at New Barnsley RUC Station. In subsequent interviews
he was further questioned about his association with known members of
PIRA and was asked if he had ever been involved in PIRA operations in
West Belfast. He was also questioned about a bomb attack at the Divis
flats on 30 March 1987 in which a soldier was murdered. During the
course of his interviews, the fifth applicant refused to answer any
questions which were put to him either in respect of the matters for
which he had been arrested or anything else. He was released from
custody at 12.45 hours on 3 April 1987 without being charged, within
56 hours of his arrest.

(6) Application No. 13033/87 : Philip Campbell

23. The sixth applicant was arrested at 19.35 hours on
12 May 1987 under section 11 of the 1978 Act and was taken to
Castlereagh Police Office. At the time of his arrest he was told that
he was being arrested under section 11 of the 1978 Act as he was
suspected of being involved in terrorism. According to the Government,
he was arrested because information was received by the RUC from a
usually reliable source which indicated that he was a member of a PIRA
bombing team. Interviewing began an hour and a half later at 21.00
hours when he was told that he was being questioned in connection with
terrorist incidents in the Belfast area as a member of a PIRA bombing
team. He declined to answer any questions during his interviews. He
was released without charge at 20.05 hours on 13 May 1987, within 25
hours of his arrest. (On 10 December 1980 the sixth applicant was
convicted of being in possession of firearms and ammunition with
intent, of possession of firearms under suspicious circumstances and
of undertaking instruction in the use of firearms for which he was
sentenced to 7 years’ imprisonment in respect of each offence to run
concurrently.)

(7) Application No. 13246/87 : Kieran Smyth

24. The seventh applicant was arrested at 19.50 hours on
14 May 1987 under section 11 of the 1978 Act and was taken to
Castlereagh Police Office. At the time of his arrest he was told that
he was being arrested under section 11 of the 1978 Act as he was
suspected of being involved in terrorism. According to the Government,
he was arrested because information was received by the RUC from a
usually reliable source which indicated that he was involved in the
hijacking of a van on 6 April 1987 at Laganbank Road. Interviewing did
not begin until the next day, at 10.40 hours on 15 May 1987. The
reason for the delay in interviewing the seventh applicant was that a
routine medical examination of the applicant could not take place until
21.20 hours on 14 May and thereafter it was not possible to assemble
a team of officers to interview the seventh applicant until the
following morning. At his first interview the applicant was told that
he was being questioned in connection with the aforementioned hijacking
of a van. In subsequent interviews he was questioned about his
involvement in the movement of firearms in the Short Strand area and
his suspected membership of PIRA. Throughout his interviews he
declined to answer any questions or to speak at all. He was released
without charge at 21.00 hours on 15 May 1987, within 26 hours of his
arrest. (At the time of his arrest, the seventh applicant had previous
convictions for riotous behaviour, intimidation, public nuisance,
making use of prohibited articles, malicious damage and belonging to
a proscribed organisation.)

(8) Application No. 13231/87 : Guy Breslin

25. The eighth applicant was arrested at 12.25 hours on
15 April 1987 under section 11 of the 1978 Act and was taken to
Castlereagh Police Office. At the time of his arrest he was told that
he was being arrested under section 11 of the 1978 Act as he was
suspected of being involved in terrorism. According to the Government,
he was arrested because information was received by the RUC from a
usually reliable source which indicated that he was involved in the
hijacking and arson of an Ulster bus on 24 March 1987 at 16.30 hours
at the junction of Townsend Street / Fountain Street, Strabane.
Interviewing began three and a quarter hours later at 15.40 hours on
the day of his arrest when he was told that he was being questioned
because of his suspected involvement in the aforementioned hijacking
and arson of an Ulster bus. He was asked what he was doing on that
date and whether he was acquainted with certain individuals. He was
asked if he was a member of PIRA and whether he had attended the
funeral of a certain Gerald Logue at Londonderry on that date. In
subsequent interviews he was further questioned along the same lines.
In none of his interviews did he answer any of the questions which were
put to him or speak at all. He was released without charge at 18.50
hours on 16 April 1987, within 31 hours of his arrest.

(9) Application No. 13232/87 : John Connolly

26. The ninth applicant was arrested at 07.05 hours on
15 April 1987 under section 11 of the 1978 Act and was taken to
Castlereagh Police Office. At the time of his arrest he was told that
he was being arrested under section 11 of the 1978 Act. He declined
to name any person who should be informed of his arrest. According to
the Government, he was arrested because information was received by the
RUC from a usually reliable source which indicated that he had been
involved in the same hijacking and arson incident as in the eighth
applicant’s case. Interviewing began over three and a half hours later
at 10.45 hours on the morning of his arrest and he was told that the
reason he was being questioned was that he was suspected of being
involved in the hijacking of the Ulster bus. He was asked if he had
attended the funeral of Gerald Logue in Londonderry on that date and
whether this was the reason for his becoming involved in the incident
in question. In subsequent interviews he was told that he was
suspected with two others of having masked and armed himself, boarded
the bus and ordered the driver off before driving the bus across the
road, breaking windows, pouring petrol inside it and setting fire to
it. He was also questioned about his involvement with PIRA in Strabane
and his association with other persons from that organisation.
Throughout the interviews the ninth applicant remained silent, refusing
to answer any questions which were put to him or speak at all. He was
released without charge on 16 April 1987 at 19.45 hours, within 37
hours of his arrest.

(10) Application No. 13233/87 : Sean McGuinness

27. The tenth applicant was arrested at 08.35 hours on
11 May 1987 under section 11 of the 1978 Act and was taken to
Castlereagh Police Office. At the time of his arrest he was told that
he was being arrested under section 11 of the 1978 Act as he was
suspected of being involved in terrorism. According to the Government,
he was arrested because information was received by the RUC from a
usually reliable source which indicated that he was involved in the
throwing of petrol bombs at the police in a series of petrol bombing
incidents in the Strabane area that year, and that he was a member of
PIRA. Interviewing began over five and a half hours later at 14.15
hours on the day of his arrest. He was told at that interview that the
reason he was being questioned was his suspected involvement in the
petrol bombing incidents and his involvement with PIRA. After denying
his involvement in any petrol bombing or riots, he declined to answer
any further questions in that interview. In subsequent interviews he
was asked if he was a member of PIRA and whether he had ever thrown
petrol bombs at the police. During his third interview the applicant
was asked whether he had been part of a crowd of youths who had thrown
petrol bombs at the police in Townsend Street on 23 February 1987. The
tenth applicant denied any involvement. He was further asked whether
he had been involved in throwing petrol bombs at the police in Fountain
Street on 6 February 1987. He denied any involvement, although he said
he had seen them being thrown in Fountain Street. During a subsequent
interview he was asked if he had ever been asked to join PIRA, but he
denied that he had. In further interviews he agreed that he had seen
petrol bombs at close quarters and described them accurately. He
admitted having thrown stones at police vehicles when he was at school.
He also said that he had read leaflets distributed by Sinn Fein which
advised those arrested for terrorist offences not to speak to the
police during interviews at Castlereagh Police Office. He was
questioned about his involvement in a riot on 23 February 1987 and a
hijacking that night in Strabane when a makeshift barricade was set on
fire by a number of youths. He was questioned in detail about many
specific cases of fire bombing in respect of which he was given the
date and time of the incidents about which he was being questioned.
He denied any involvement. He was released without charge at 11.20
hours on 13 May 1987, within 51 hours of his arrest.

(11) Application No. 13310/87

28. The eleventh applicant was arrested at 07.40 hours on
28 April 1987 under section 11 of the 1978 Act and was taken to
Castlereagh Police Office. At the time of his arrest he was told that
he was being arrested under section 11 of the 1978 Act as he was
suspected of being involved in terrorism. According to the Government,
he was arrested because information was received by the RUC from a
usually reliable source which indicated that he was involved in the
same hijacking incident as in the eighth applicant’s case.
Interviewing began over three and a quarter hours later at 11.00 hours
on the morning of his arrest when he was told that he was being
questioned because he was suspected of being involved in the
aforementioned bus hijacking, the day of Gerald Logue’s funeral, and
of arson at Townsend Street, Strabane. At subsequent interviews the
applicant was asked about his membership of the Irish National
Liberation Army (INLA), a proscribed organisation. He was also
questioned in further detail about the bus incident. Apart from
denying, in the fifth interview, that he was involved in the incident
in question in any way, the eleventh applicant declined to answer any
questions. He was released without charge at 15.10 hours on
30 April 1987, within 56 hours of his arrest.

(12) Application No. 13553/88

29. The twelfth applicant was arrested at 07.20 hours on
7 May 1987 under section 11 of the 1978 Act and was taken to
Castlereagh Police Office. At the time of his arrest he was told that
he was being arrested under section 11 of the 1978 Act as he was
suspected of being involved in terrorism. According to the Government,
he was arrested because information was received by the RUC from a
source which indicated his involvement in causing an explosion at a
primary school in Barrack Street which occurred at 12.25 hours on
6 March 1987. The RUC had also received information from another and
usually reliable source indicating that he was a member of PIRA.
Interviewing began over three and a quarter hours later at 10.40 hours
on the morning of his arrest at which he was informed that he was being
questioned because he was suspected of being a member of PIRA in
Strabane. In addition, he was questioned about his movements on and
around 5 and 6 March 1987 and about his involvement in causing the
explosion at the primary school. In subsequent interviews he was
questioned about possession of a rifle with a certain J.B. in Strabane
at the end of February 1987, as well as his membership of PIRA. The
twelfth applicant was asked whether he knew J.B. or had ever spoken to
him. He was also questioned about whether he supported the aims and
objectives of PIRA. Throughout his interviews, he declined to answer
any questions. He was released without charge on 8 May 1987 at 19.00
hours, within 36 hours of his arrest.

(13) Application No. 13555/88

30. The thirteenth applicant was arrested at 08.40 hours on
11 May 1987 under section 11 of the 1978 Act and was taken to
Castlereagh Police Office. At the time of his arrest he was told that
he was being arrested under section 11 of the 1978 Act as he was
suspected of being involved in terrorism. According to the Government,
he was arrested because information was received by the RUC from a
usually reliable source which indicated that he had been in a series
of petrol bomb attacks in the Strabane area in the previous 12 months,
and was involved with PIRA. Interviewing began over five and a half
hours later at 14.15 hours on the day of his arrest. At that interview
he was informed that he was being questioned because he was suspected
of being involved in the series of petrol bombings. In subsequent
interviews he was further questioned about specific petrol bombing
incidents in Strabane during February and March 1987. He was asked why
the police would receive information to the effect that he had been
involved in these petrol bombings if it were not true. He denied any
involvement. He was released without being charged at 11.20 hours on
13 May 1987, within 51 hours of his arrest.

B. The relevant domestic law and practice

31. Section 11 of the Northern Ireland (Emergency Provisions) Act
1978 conferred, inter alia, a power of arrest which is now repealed.
The relevant parts of section 11 provided as follows:

“1. Any constable may arrest without warrant any person whom he
suspects of being a terrorist …

3. A person arrested under this section shall not be
detained in right of the arrest for more than 72 hours
after his arrest, and Article 131 of the Magistrates’
Courts (Northern Ireland) Order 1981 and section 50(3)
of the Children and Young Persons Act (Northern Ireland)
1968 (requirement to bring arrested person before a
magistrates’ court not later than 48 hours after his
arrest) shall not apply to any such person.”

32. The legislative history and domestic law relating to section 11
is summarised by the Court in paragraphs 18 to 22 of its Fox, Campbell
and Hartley judgment of 30 August 1990. As the Court observed in
paragraph 22 of its judgment, section 11(1) was replaced by section 6
of the Northern Ireland (Emergency Provisions) Act 1987, which came
into effect on 15 June 1987, subsequent to the facts of all the present
applications. This new provision is confined to conferring a power of
entry and search of premises for the purpose of arresting persons under
section 14 of the Prevention of Terrorism (Temporary Provisions) Act
1989. This latter provision expressly limits powers of arrest without
a warrant to cases in which there are “reasonable grounds” for
suspicion.

33. In addition, an arrest without warrant is subject to the common
law rules laid down by the House of Lords in the case of Christie v.
Leachinsky ((1947) Appeal cases 573). The person being arrested must
in ordinary circumstances be informed of the true ground of his arrest
at the time he is taken into custody or, if special circumstances exist
which excuse this, as soon thereafter as it is reasonably practicable
to inform him. This does not require technical or precise language to
be used provided the person being arrested knows in substance why.
However, for domestic law purposes, a person was validly arrested under
section 11 (1) of the 1978 Act if he was simply informed that he was
being arrested as a suspected terrorist (in re McElduff (1972) Northern
Ireland Report 1 and McKee v. Chief Constable for Northern Ireland
(1985) 1 All E.R. 1-4).

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

34. The Commission has declared admissible the applicants’ complaint
that their arrest and detention under section 11 of the Northern
Ireland (Emergency Provisions) Act 1978 were in breach of Article 5
para. 1 (Art. 5-1) of the Convention. It has also declared admissible
the complaint of the seventh applicant that he was not informed
promptly of the reasons for his arrest, contrary to Article 5 para. 2
(Art. 5-2) of the Convention, and the first seven applicants’ complaint
that they had no enforceable right to compensation under Northern
Ireland law for their Article 5 para. 1 (Art. 5-1) claim, contrary to
Article 5 para. 5 (Art. 5-5) of the Convention.

B. Points at issue

35. The following are accordingly the points at issue in the present
applications:

– whether the applicants’ arrest and detention were in violation
of Article 5 para. 1 (Art. 5-1) of the Convention;

– whether the seventh applicant was informed promptly of the
reasons for his arrest as required by Article 5 para. 2 (Art. 5-2) of
the Convention;

– whether the first seven applicants had an enforceable right to
compensation, as required by Article 5 para. 5 (Art. 5-5) of the
Convention.

C. As regards Article 5 para. 1 (Art. 5-1) of the Convention

36. The relevant part of Article 5 para. 1 (Art. 5-1) of the
Convention provides as follows:

“1. Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure
prescribed by law:

…

(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of
having committed an offence …”

37. The applicants did not dispute that their arrests and detention
were “lawful” under Northern Ireland law and, thereby, in accordance
with a procedure prescribed by law, within the meaning of Article 5
para. 1 (Art. 5-1) second sentence. They did, however, complain that
their arrests and detention under section 11 of the Northern Ireland
(Emergency Provisions) Act 1978 (the 1978 Act) were otherwise in breach
of Article 5 para. 1 (Art. 5-1) of the Convention, insofar as, in
particular, they did not satisfy the requirements of Article 5 para.
1 (c) (Art. 5-1-c).

38. The applicants’ first contention was that they were not arrested
for the purpose of bringing them before a competent legal authority,
but merely for the purpose of interrogating them. Their second
contention concerned the absence of any standard of reasonable
suspicion in the legislation which authorised their detention. Section
11 of the 1978 Act did not require the arresting officer to hold a
reasonable suspicion that the applicants had committed any criminal
offences. The absence of the requirement of reasonableness was, in
their submission, given the Court’s judgment in the Fox, Campbell and
Hartley case, in breach of Article 5 para. 1 (Art. 5-1) of the
Convention (Eur. Court H.R., Fox, Campbell and Hartley judgment of
30 August 1990, Series A no. 182, pp. 16-18 paras. 34-36). The
Government contended, inter alia, that, although the legislation did
not require reasonable suspicion on arrest, in each of the present
cases the arresting officers had held reasonable suspicions that the
applicants had committed terrorist offences, even if the Government
were unable to disclose the sources of information upon which part of
those suspicions were based without jeopardising such sources.

39. The Commission refers to the Court’s judgment in the similar Fox,
Campbell and Hartley case in which it noted that the test for lawful
arrest under section 11 (1) of the 1978 Act was a subjective one of
honest suspicion on the part of the arresting officer, whereas
Article 5 para. 1 (c) (Art. 5-1-c) of the Convention requires an
objective test of reasonable suspicion. This presupposes the existence
of facts or information which would satisfy an objective observer that
the person concerned may have committed an offence. What may be
regarded as reasonable will however depend on the circumstances of a
particular case. Whilst terrorist crime presents special problems and
the police may arrest someone on the basis of reliable sources which
must remain confidential for their protection and future efficacy,
nevertheless the exigencies of dealing with terrorist crime cannot
justify stretching the notion of “reasonableness” to the point where
the essence of the Article 5 para. 1 (c) (Art. 5-1-c) safeguard is
impaired. Although the Contracting State cannot be asked to reveal its
confidential sources of information, the Commission and the Court
cannot be satisfied that the requirements of Article 5 para. 1
(Art. 5-1) have been fulfilled unless the Contracting State has
furnished at least some specific facts or information capable of
showing the Convention organs that there was reasonable suspicion
against the person concerned.

40. Two of the applicants in the Fox, Campbell and Hartley case,
Mr. Fox and Ms. Campbell, were arrested on suspicion of being
involved with intelligence gathering and courier work for the
Provisional IRA. They had previous convictions for terrorist offences.
Mr. Hartley was suspected of involvement in a kidnapping incident.
The respondent Government had asserted that, although they could not
disclose the information or identify the source of the information that
led to the applicants’ arrest, there had existed strong grounds for
suggesting that in Mr. Fox’ and Ms. Campbell’s cases, at the time of
their arrest, they were engaged in terrorist information and courier
activities and that, in Mr. Hartley’s case, there was available to the
police material connecting him with a terrorist kidnapping
(ibid p. 17 para. 33). The Court accepted that the police held an
honest suspicion concerning these applicants’ involvement in terrorist
offences. It also noted the previous convictions of Mr. Fox and
Ms. Campbell and that, in confirmation of the police’s honest
suspicion, the applicants had been questioned on specific terrorist
matters. However, in the absence of further material, the Court
concluded that the Government’s explanations did not meet the objective
standard of reasonable suspicion laid down in Article 5 para. 1 (c)
(Art. 5-1-c) of the Convention. In view of this finding it did not
consider it necessary to go into the question of the purpose of the
arrest of those applicants (Eur. Court H.R., Fox, Campbell and Hartley
judgment of 30 August 1990, pp. 15-18 paras. 28-36, partially quoted
in the Decision on admissibility in the present cases at Appendix II
pp. 20-37 below).

41. As regards the facts of the present cases, the Commission finds
that no significant distinctions can be drawn between them and the
circumstances of the Fox, Campbell and Hartley case. In the present
cases the Government, without providing any details or corroborating
elements, stated that the police suspected the applicants of
involvement in terrorist offences because of information received from
usually reliable sources, which had to remain confidential for security
purposes. This explanation is not materially distinguishable from that
provided in the Fox, Campbell and Hartley case (see preceding
para. 40). Moreover the Commission emphasises that the legislation
itself, section 11 of the 1978 Act, did not require the arresting
officer to hold a reasonable suspicion, and that it has since been
amended to include the reasonableness standard. In these
circumstances, the Commission is of the opinion that the elements
provided by the Government are insufficient to support the conclusion
that there was “reasonable suspicion” against the present applicants
in accordance with the minimum standard set by Article 5 para. 1 (c)
(Art. 5-1-c) of the Convention. In the light of this opinion the
Commission does not consider it necessary to go into the applicants’
other complaint under Article 5 para. 1 (c) (Art. 5-1-c) of the
Convention concerning the purpose of their arrests.

Conclusion

42. The Commission concludes, by 7 votes to 2, that there has been
a violation of Article 5 para. 1 (Art. 5-1) of the Convention in the
present cases.

D. As regards Article 5 para. 2 (Art. 5-1) of the Convention

43. Article 5 para. 2 (Art. 5-2) of the Convention provides as
follows:

“Everyone who is arrested shall be informed promptly, in a
language which he understands, of the reasons for his arrest
and of any charge against him.”

44. The seventh applicant, Kieran Smyth, complained that he was not
informed promptly of the reasons for his arrest, as required by
Article 5 para. 2 (Art. 5-1) of the Convention. The Government relied
on the findings of the Court in the Fox, Campbell and Hartley case:
Whilst the applicant was told on arrest that he was being arrested
under section 11 of the 1978 Act, thereafter, during his interview with
the police, it must have become clear to him why he had been arrested
and the reasons why he was suspected of being a terrorist.
Article 5 para. 2 (Art. 5-2) of the Convention does not necessarily
require this information to be related in its entirety by the arresting
officer at the very moment of the arrest. The fact that a few hours
elapsed before he was interviewed could not be regarded as falling
outside the constraints of time imposed by the notion of promptness in
Article 5 para. 2 (Art. 5-2) (ibid pp. 19-20 paras. 40-43).

45. The Commission notes that the Court held in its Fox, Campbell and
Hartley judgment that a mere reference to section 11 of the 1978 Act
on arrest was insufficient information for the purposes of Article 5
para. 2 (Art. 5-2) of the Convention, but that during interrogation
there was no reason to suppose that these applicants were unable to
deduce from the questions put to them why they had been arrested. On
the same basis, the Commission finds that there is no ground to suppose
that the seventh applicant in the present cases was unable to
understand from his interviews why he had been arrested. However,
unlike the Fox, Campbell and Hartley case, the interviewing of the
seventh applicant did not commence within a few hours of arrest. His
interviewing began the day after his arrest. In the former case
interviewing had begun at the latest 4 hours and 35 minutes after
arrest, whereas the seventh applicant was kept over night without any
substantial explanation other than the initial reference to the 1978
Act, and interviewing began 14 hours 50 minutes after his arrest.

46. The Government explained that the delay was caused by the
practical problems of obtaining a medical examination of the applicant
and then assembling an interview team so late on the same evening of
the applicant’s arrest (para. 24 above). However, the Commission
considers that the fundamental importance of the right to liberty, and
the ancillary right to adequate information about the reasons for a
deprivation of liberty, must be respected notwithstanding any practical
problems which may exist. The notion of promptness under Article 5
para. 2 (Art. 5-2) of the Convention, in the Commission’s view, must
involve a time constraint of no more than a few hours if it is not be
deprived of its natural meaning, unless exceptional circumstances arise
in a particular case, such as some serious incapacity on the part of
the arrested person to comprehend the reasons that might have been
given (cf. No. 6998/75, X v. the United Kingdom, Comm. Report 16.7.80,
paras. 109-113, Eur. Court H.R., Series B no. 41, pp. 34-35).
Accordingly the Commission is of the opinion that the seventh applicant
was not informed promptly enough of the reasons for his arrest.

Conclusion

47. The Commission concludes, by a unanimous vote, that there has
been a violation of Article 5 para. 2 (Art. 5-2) of the Convention in
the case of Kieran Smyth, the seventh applicant.

E. As regards Article 5 para. 5 (Art. 5-5) of the Convention

48. Article 5 para. 5 (Art. 5-5) of the Convention provides as
follows:

“Everyone who has been the victim of arrest or detention
in contravention of the provisions of this Article shall
have an enforceable right to compensation.”

49. The first seven applicants also complained that they had no
enforceable right to compensation under domestic law for the breach of
Article 5 para. 1 (Art. 5-1) of the Convention. The Government
contended that as, in their view, there had been no breach of
Article 5 para. 1 (Art. 5-1) of the Convention in the present cases,
no issue arose under Article 5 para. 5 (Art. 5-5).

50. The Commission has concluded above (para. 42) that the
applicants’ arrest and detention were in breach of Article 5 para. 1
(Art. 5-1) of the Convention. This violation could not give rise to
an enforceable right to compensation before the Northern Ireland
Courts. The Commission recalls that a violation of Article 5 para. 5
(Art. 5-5) was found by the Court in the similar case of Fox, Campbell
and Hartley (ibid p. 21 para. 46). There are no elements in the
present first seven applications to distinguish their cases from this
finding by the Court.

Conclusion

51. The Commission concludes, by 7 votes to 2, that there has been
a violation of Article 5 para. 5 (Art. 5-5) of the Convention in the
cases of the first seven applicants.

F. Recapitulation

52. The Commission concludes, by 7 votes to 2, that there has been
a violation of Article 5 para. 1 (Art. 5-1) of the Convention in the
present cases (para. 42).

53. The Commission concludes, by a unanimous vote, that there has
been a violation of Article 5 para. 2 (Art. 5-2) of the Convention in
the case of Kieran Smyth, the seventh applicant (para. 47).

54. The Commission concludes, by 7 votes to 2, that there has been
a violation of Article 5 para. 5 (Art. 5-5) of the Convention in the
cases of the first seven applicants (para. 51).

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (S. TRECHSEL)

Dissenting opinion of Sir Basil Hall joined by Mr. Schermers

I find myself unable to agree with the conclusion of the majority
of the Commission that there has been a violation of
Article 5 para. 1 (c) of the Convention in these cases.

In the Fox, Campbell and Hartley judgment the Court commented
(para. 34) that “Contracting States cannot be asked to establish the
reasonableness of the suspicion grounding the arrest of a suspected
terrorist by disclosing the confidential sources of supporting
information or even facts which would be susceptible of indicating such
sources or their identity”. The Court went on to say, “Nevertheless
the Court must be enabled to ascertain whether the essence of the
safeguard afforded by Article 5 para. 1 (c) has been secured”.

The question in that case, as in the present cases, was whether
some facts or information have been furnished capable of satisfying the
Convention organs that the applicants had been reasonably suspected of
committing the alleged offence.

In the Fox, Campbell and Hartley case the Government argued that,
although they could not disclose the sensitive material on which
suspicion was based, two elements supported their contention that there
was reasonable suspicion. The first was that the applicants in that
case had previous convictions for serious acts of terrorism. The
second was that they were questioned about specific terrorists acts.
The Court, by a majority, found that these two elements on their own
were insufficient to support the conclusion that there was “reasonable
suspicion”.

The situation in the present cases is different from that in the
Fox, Campbell and Hartley case, in which, although reference was made
to sources, reliance was not placed on them, but on the two elements
mentioned above. The Government merely commented that although the
source of information could not be disclosed there was strong ground
for suggesting that the applicants in that case had committed offences.
In the present cases the Government positively asserts that information
that each of the applicants had committed an offence was furnished by
a “usually reliable source”. Such information must give rise to a
reasonable suspicion that the offence in question has been committed
unless other information in the possession of the arresting officer
casts doubt on its validity.

It must be accepted that there was information in the possession
of the authorities giving rise to a reasonable suspicion that in each
of these cases the applicant had committed an offence. Accordingly
there was no violation of Article 5 para. 1 (c).

Appendix I

HISTORY OF THE PROCEEDINGS

Date Item
________________________________________________________________

Introduction of applications

27.01.87 First application No. 12690/87

06.02.87 Second application No. 12731/87

13.03.87 Third application No. 12823/87

01.05.87 Fourth application No. 12900/87

01.06.87 Fifth application No. 13032/87

02.06.87 Sixth application No. 13033/87

18.09.87 Seventh application No. 13246/87

14.05.87 Eighth, ninth and tenth applications
Nos. 13231/87, 13232/87 and 13233/87

10.08.87 Eleventh application No. 13310/87

01.10.87 Twelfth application No. 13553/87

25.06.87 Thirteenth application No. 13555/87

Registration of applications

02.02.87 First application No. 12690/87

17.02.87 Second application No. 12731/87

24.03.87 Third application No. 12823/87

05.05.87 Fourth application No. 12900/87

09.06.87 Fifth application No. 13032/87

12.06.87 Sixth application No. 13033/87

28.09.87 Seventh, eighth, ninth and tenth
applications Nos. 13246/87, 13231/87,
13232/87 and 13233/87

19.10.87 Eleventh application No. 13310/87

26.01.88 Twelfth and thirteenth applications
Nos. 13553/87 and 13555/87

Examination of admissibility

07.10.87 Commission’s decision to give notice
of first, second and fourth
applications to respondent
Government and to adjourn

06.05.89 Commission’s decision to give notice
of other applications to
respondent Government and to adjourn

07.09.90 Commission’s decision to invite the
parties to submit written observations
simultaneously

07.11.90 Observations of last six applicants

04.01.91 Government’s observations

12.02.91 Observations of first seven applicants

10.04.91 Reference of applications to Second
Chamber

31.05.91 Commission’s decision to declare
first seven applications partially
admissible and other applications
admissible

Examination of the merits

10.06.91 Parties invited to submit further
observations on the merits and
information about the twelfth
application

22.07.91 Information from the Government
about the twelfth application

10.09.91 Commission’s consideration of
state of proceedings

14.10.91 Commission’s deliberations on
merits and on text of its Article 31
Report. Joinder of applications.
Final votes taken. Adoption of Report